은행 거래에 있어서 근저당권 설정 비용 부담 주체에 관한 논의의 검토

Abstract

Recently, legal issues on who should bear costs for establishing mortgage (in particular, keun-mortgage) in relation to bank mortgage loan transactions (i.e., a customer as a borrower or a bank as a lender) have been in the spotlight. This controversial issue is due to the recent supreme court decision case (Supreme Court 2010. 10. 14. Decision 2008Doo23184), holding that the standard contract clause (the clause used before July 2011 by commercial banks) of making a borrower's burden for his/her bearing the costs in creating mortgage, such as mortgage recording fees and legal fees, is unfair. Based on this court decision, a bank customers' association, representing complained customers, began to bring actions against banks, claiming damages for those fees or expenses incurred by customers, whose amount is expected to be more than 10 trillion Won. This article seeks to review who is a more appropriate person to bear such costs, based on the analysis of a loan interest rate determination mechanism in bank mortgage loan transactions. In addition, this article introduces the relevant court cases as well as academic discussions on this matter. Further, this article reviews the relevant regulations and practices in other foreign countries such as the United States, the United Kingdom, France, Germany and Japan as well as the practices in international loan transactions. Such results of analysis show that it is common that in practice and/or under relevant laws and regulations in certain countries, a borrower bears such costs of establishing mortgage. In determining a bank loan interest rate, in practice, a bank as a lender reflects diverse factors including funding interest rate, "credit risk costs," human and physical resource expenses, and margin. In particular, "credit risk costs" are so mitigated by attaching mortgage that the interest rate in mortgage loan transactions becomes lower than that in credit loan transactions (i.e., in non-collateral loan transactions). Thus, a borrower, rather than a bank as a lender, will benefit from this mortgage loan transaction, who will become an actual beneficiary. Therefore, it is reasonable to argue that a borrower as a beneficiary should bear the costs of establishing mortgage as keun-mortgage such as mortgage registration fees and legal fees. Otherwise, in the case of non-collateral loan transactions, a borrower should accept a higher lending interest rate imposed by a lender. On the other hand, if it is agreed that a lender should bear the costs of creating mortgage between the parties, then a bank as a lender will reflect such costs in the determination of a lending interest rate. Therefore, the core issue in this matter will be how the costs of establishing mortgage are borne, not who should bear the costs.